Request To Revisit A Previous Decision.

[Hoppy]

In the continuing saga of a veteran who I am helping a service officer suggested that I request the RO to revisit a previous denial. I recently obtained a medical opinion from a licensed clinical psychologist who was a staff clinician at a local VA hospital. This clinician stated in her report that she has treated hundreds of cases of panic disorder while working for the VA or the last 15+ years. The clinician also stated that she has performed compensation and pension examinations. The veteran's claim was previously denied without a C&P exam, which forced me to obtain the report from this staff clinician.

The staff clinician summarily stated that the veteran currently has a panic disorder subsequent to a progression of symptoms noted by qualified examiners while serving in the military meeting the DSM IV criteria for panic disorder and the condition was of such prolonged development and lack of treatment resulted in a chronic condition prior to discharge. The full report is three pages long. I intend to submit this report as evidence in support of the claim.

I am upset that this veteran's claim was denied illegally without a C&P exam. I have explained to the service officer that had the VA followed the law the exam that I obtained would have been developed through the C&P process. I told the service officer that the failure to provide a C&P exam was in direct defiance of federal circuit court instructions involving cases whereby the VA determines that new and material evidence is required because the VA has wrongly confused the material facts of a new claim with a previously denied and closed claim.

I am advancing the position that new and material evidence should not have been a requirement and the position taken by the VA that they could not schedule a C&P exam until the veteran obtain a new and material evidence created an illegal and unnecessary delay. This type of delay is atypical in that it requires extensive and sometimes expensive reports and totally circumvents any development of a claim by the VA prior to a denial. This type of decision should be given full and careful consideration. A denial of a C&P exam can create undue hardship and expense. As such, a separate expedited appeal process should be available. The fact that the BVA in many cases is citing the federal circuit court decision and remanding C&P exams on claims that were denied without a C&P by this RO and other RO's should be investigated to determine if the RO's are willfully circumventing the requirements detailed by the federal circuit court. Understanding and implementing the court's decision could be interpreted as an elementary duty of an individual's job. Failure to perform elementary duties of a job has been determined to be gross incompetence. Additionally, due to the fact that the veteran at the time he was notified that he needed new and material evidence was not given any explanation as to his rights to appeal the determination that he needed new and material evidence the claim should now be expedited to put it back on schedule as though a C&P exam had been properly obtained prior to the denial.

Initially the service officer told me there was nothing I could do except appeal the denial. After I got done explaining to her my position as I described above the service officer tells me to advance a request to revisit the claim.

Edited October 1, 2009 by Hoppy

[Wings]

x

x

x

Displeased with the Morton decision, which the Committees on

Veterans' Affairs deemed a "significant barrier to veterans who need

assistance in obtaining information and evidence in order to receive

benefits from . . . VA," Congress eliminated the well-grounded-claim

requirement by enacting the Veterans Claims Assistance Act of 2000.

See 146 Cong. Rec. H9913-14 (Oct. 17, 2000) (Explanatory Statement by the

House and Senate Committees on Veterans' Affairs); Luyster v. Gober, 14

Vet.App. 186, 186 (2000). The Committees also noted that under VA's

"claimant friendly" and "non-adversarial" adjudicative system, "VA must

provide a substantial amount of assistance to a [claimant] seeking

benefits." 146 Cong. Rec. at H9913 (citations omitted).

Search Congressional Record http://thomas.loc.gov/

[Page: H9913]

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from Arizona (Mr. STUMP) and the gentleman from Illinois (Mr. EVANS) each will control 20 minutes.

Mr. STUMP. Madam Speaker, H.R. 4864 is the Veterans Claims Assistance Act of 2000. The bill addresses the Morton versus West court decision and corrects difficulties veterans have experienced with VA's claims processing. This bill clarifies VA's duty to assist veterans with their claims .

Over the last few months, the Committee on Veterans' Affairs has worked closely with the Veterans Administration, the Senate Committee on Veterans' Affairs, and the veterans service organizations on this bill.

Passage of this bill today will restore the balance in the VA claims system. Although this legislation will require some claims to be redone, it is the right thing to do.

I urge my colleagues to support H.R. 4864.

Madam Speaker, I include an explanatory statement on H.R. 4864, as amended, as follows:

Explanatory Statement on H.R. 4864, As Amended

H.R. 4864, as amended, reflects a compromise agreement that the House and Senate Committees on Veterans Affairs have reached on H.R. 4864 and section 101 of S. 1810. H.R. 4864, the Veterans Claims Assistance Act of 2000, passed the House on July 25, 2000 (hereinafter referred to in context as the ``House Bill''). On September 21, 2000, the Senate passed S. 1810, the Veterans Programs Enhancement Act of 2000 (hereinafter referred to in context as the ``Senate Bill'').

The House and Senate Committees on Veterans Affairs have prepared the following explanation of H.R. 4864, as amended (hereinafter referred to as the ``Compromise Agreement''). Differences between the provisions contained in the Compromise Agreement and the related provisions of H.R. 4864 and section 101 of S. 1810 are noted in this document, except for clerical corrections, conforming changes made necessary by the Compromise Agreement and minor drafting, technical and clarifying changes.

BACKGROUND

The Department of Veterans Affairs' (VA) system for deciding benefits claims ``is unlike any other adjudicative process. It is specifically designed to be claimant friendly. It is non-adversarial; therefore, the VA must provide a substantial amount of assistance to a veteran seeking benefits.'' H. Rept. No. 105-52, at 2 (1997). Chapter 51 of title 38, United States Code, provides the general administrative provisions relating to processing of claims for veterans benefits. In particular, section 5107 of title 38, United States Code, states that it is a veteran's responsibility to submit evidence of a ``well-grounded'' claim, and the Secretary shall assist a veteran in developing the facts pertinent to the claim. Such assistance historically has included requesting service records, medical records and other documents identified by the veterans .

On July 14, 1999, the U.S. Court of Appeals for Veterans Claims ruled in Morton v. West, 12 Vet. App. 477, remanded on other grounds XF.3d X, 2000 U.S. App. LEXIS 22464 (Fed. Cir., August 17, 2000), that VA has no authority to develop claims that are not ``well-grounded,'' and invalidated VA manual provisions which directed regional offices to undertake full development of all claims . This and previous court decisions construing the meaning of section 5107 of title 38, United States Code, have constructed a significant barrier to veterans who need assistance in obtaining information and evidence in order to receive benefits from the VA.

Definition of ``Claimant'' for Purposes of Veterans Claims

Current Law

Chapter 51 of title 38, United States Code, refers to an applicant for veterans benefits as a ``claimant,'' but does not provide a definition of the term.

House Bill

Section 2 of H.R. 4864 would amend chapter 51 of title 38, United States Code, by adding a new section at the beginning of the chapter. The new section would define the term ``claimant'' to mean ``any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.''

Senate Bill

Section 101(a) of S. 1810 would add a new section 5101 to title 38, United States Code, to define the term ``claimant'' as ``any individual who submits a claim for benefits under the laws administered by the Secretary.''

Compromise Agreement

Section 2 of the compromise agreement follows the House language.

Assistance to Claimants

APPLICATION FORMS; NOTICES TO CLAIMANTS OF INCOMPLETE APPLICATIONS

Current law

Section 5102 of title 38, United States Code, provides that the Secretary shall furnish,

[Page: H9914]

upon request made in person or in writing by any person claiming or applying for benefits, all printed instructions and forms necessary to establish a claim for veterans benefits at no cost to the claimant.

Section 5103 of title 38, United States Code, provides that if a claimant's application for benefits is incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the application. It further provides that in the event that the additional evidence is not received within one year from the date of notification, no benefits may be paid by reason of the incomplete application. Section 5103 does not apply to any application or claim for Government life insurance benefits. Section 5103 also provides that benefits may be not be denied on the basis that the claimant does not have a mailing address.

The Secretary of Veterans Affairs' duty to assist claimants is codified at section 5107(a) of title 38, United States Code. The courts have held that the Secretary's duty to assist claimants does not arise until a claimant has first submitted a ``well-grounded'' claim.

House Bill

Section 3 of H.R. 4864 substantially revises current sections 5102, 5103, and 5107 of title 38, United States Code. The ``duty to assist'' provision would be transferred from section 5107 of title 38 to section 5103. As revised, section 5102 would contain almost all of existing sections 5102 and 5103. Subsection (a) of the proposed section 5102 is identical to existing section 5102. Subsections © and (d) of proposed section 5102 are identical to subsections (a) and (b) of existing subsection 5103. Proposed section 5102(b) contains the provisions of subsection (a) of existing section 5103. Proposed subsection 5102(b) clarifies the Secretary's obligation to send notices to the claimant and the claimant's representative, and to advise the claimant and the claimant's representative as to information the claimant must submit to complete the application. It also would require the Secretary to notify the claimant (and the claimant's representative) of any additional information and medical and lay evidence necessary to substantiate the claim, and which portion of such evidence is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain.

Senate Bill

Section 101(b) of S. 1810 would amend existing section 5103(a) by striking ``evidence'' both places it appears and inserting ``information,'' in order to clarify that claimants will not be obligated to present any evidence upon initial application for benefits.

Subsection © of proposed section 5103A (as added by section 101©) would require VA to notify the claimant and the claimant's representative of the information and medical or lay evidence needed in order to aid in the establishment of eligibility for benefits, and inform the claimant and his or her representative what information under subsection ©(1) the Secretary was unable to obtain.

Compromise Agreement

Proposed section 5102(a) would require the Secretary to furnish all instructions and forms necessary when a request is made, or an intent is expressed, by any person applying for veterans benefits. It is the Committees' intent that such a request might be made by using various modes of communication--electronic, telephonic, written, or personal.

The removal of the ``in person or in writing'' requirement from current section 5102 of title 38, United States Code, is not intended to change current VA regulations with respect to the definition of a claim or the requirements concerning what communication is sufficient to treat the communication as an informal claim. By removing the restriction on requests ``in person or in writing,'' the Committees intend to permit veterans and VA to use current and future modes of communication. The Committees expect VA to appropriately document its communications with veterans regardless of the form of communication used.

The compromise version of revised section 5103 of title 38, United States Code, substantially maintains the current provisions of section 5103. However, it renames the title of the section as ``Notice to claimants of required information and evidence'' to more accurately reflect the section's purpose. The compromise agreement enhances the notice that the Secretary is now required to provide to a claimant and the claimant's representative regarding information that is necessary to complete the application. The notice would inform the claimant what information (e.g., Social Security number, address, etc.), and what medical evidence, (e.g., medical diagnoses and opinions on causes or onset of the condition, etc.) and lay evidence (e.g., statements by the veteran, witnesses, family members, etc.) is necessary to substantiate the claim. The notice would also specify which portion of this information and evidence is to be provided by the Secretary or by the claimant.

The compromise agreement also maintains the language in current section 5103 relating to time limits, but expands that language to include ``information or evidence.'' It is not the Committees' purpose to modify the historical application of this provision, nor do the Committees intend that this section be interpreted as a hypertechnical bar to benefits. For example, if the Secretary notices a claimant to submit three pieces of information or evidence, and the claimant submits only two of the specified items, which are sufficient evidence for VA to grant the claim, then VA must act at that point. The failure to submit the additional information would not be grounds for barring payment of benefits of an otherwise established claim.

The Committees have agreed to use the phrase ``information ..... and evidence ..... that is necessary to substantial the claim'' [emphasis added] in appropriate places in revised sections 5103 and 5103A. This wording is used in lieu of phrases such as ``establishment of the eligibility of the claimant'' (S. 1810) or ``establishment of eligibility for the benefits sought'' (H.R. 4864). Although all three phrases convey a similar if not identical purpose, the Committees believe that they have chosen a less ambigioius and more objective test for the types of evidence that could be useful to the Secretary in deciding the claim. If information or evidence has some probative value, there must be an effort made to obtain it or to explain to the claimant how he or she might obtain it.

It is the Committees' intent that the verb ``to substantiate,'' as used in this subsection and throughout the compromise bill (cf., proposed 5103A(a), 5103A(2), 5103A(g)) be construed to mean ``tending to prove'' or ``to support.'' Information or evidence necessary to substantiate a claim need not necessarily prove a claim--although it eventually may do so when a decision on a claim is made--but it needs to support a claim or give form and substance to a claim.

SECRETARY'S DUTY TO ASSIST CLAIMANTS: GENERAL DUTY TO ASSIST

House Bill

Proposed subsection (a) of new section 5103 is a revision of language currently found in section 5107(a), which requires the Secretary to assist claimants who have filed a ``well-grounded'' claim. As revised, the Secretary would be obligated to assist a claimant in obtaining evidence that is necessary to establish eligibility for the benefit sought. The well-grounded claim requirement would be eliminated. However, the Secretary would be able to decide a claim without providing assistance under this subsection when no reasonable possibility exists that such assistance would aid in the establishment of eligibility for the benefit sought.

Senate Bill

Subsection (a) of proposed section 5103A would require the Secretary to make reasonable efforts to assist in the development of information and medical and lay evidence necessary to establish the eligibility of a claimant for benefits. It eliminates the well-grounded claim requirement.

Subsection (b) provides that the Secretary is not required to provide assistance to a claimant under subsection (a) if no reasonable possibility exists that such assistance would aid in the establishment of the eligibility of the claimant for benefits.

Compromise Agreement

Section 3 of the compromise agreement would require the Secretary to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for the benefit sought. The exact type of assistance , such as obtaining documentary evidence or medical examinations or opinions, is not specified in this section since the type of assistance needed for each claim will vary depending upon the benefit sought. This lack of specificity is not intended to limit the type of assistance required or rendered. However, the Secretary is not required to assist a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. Under this section, the Secretary may defer providing assistance pending the submission by the claimant of essential information missing from the claimant's application.

ASSISTANCE IN OBTAINING RECORDS

House Bill

Proposed subsection (b) of the new section 5103 clarifies the Secretary's obligation to assist a claimant in obtaining evidence that is relevant to a particular claim. Under the House bill, the Secretary would be required to make reasonable efforts to obtain relevant records that the claimant adequately identifies and authorizes the Secretary to obtain. Subsection (b) would also require that the Secretary provide notice to the claimant if the effort to obtain records is unsuccessful and briefly explain the Secretary's efforts to obtain such records, describe any further actions to be taken by the Secretary, and allow the claimant a reasonable opportunity to obtain the records before the claim is decided and notify the Secretary of such actions.

Senate Bill

The Senate bill does not specifically provide for general assistance to secure records, but considers that obligation as part of VA's duty to assist claimants in the development of information and evidence necessary to establish entitlement to benefits.

Compromise Agreement

Under section 3, the Secretary would be required to make reasonable efforts to obtain relevant records, including private records, that the claimant adequately identifies and authorizes the Secretary to obtain. In an effort to keep the claimant informed about the status of the development of his or her claim, the Secretary would be required to notify the claimant when the Department is unable to obtain records. The notice would identify the records the Secretary is unable to obtain, provide a brief explanation of the

[Page: H9915]

efforts that the Secretary has made to obtain those records, and describe any further action to be taken by the Secretary with respect to the claim. The Secretary would be required to continue attempts to obtain the records from a Federal department or agency until it is reasonably certain that the records do not exist or that further efforts to obtain them would be futile.

OBTAINING RECORDS FOR COMPENSATION CLAIMS

House Bill

Proposed subsection © of section 5103 would provide for special rules for obtaining evidence in disability compensation claims . For this type of claim, the Secretary would always be obligated to obtain (1) existing service medical records, and other relevant service records if the claimant has provided sufficient locator information, (2) records of treatment or examination at Department health care facilities, if the claimant has provided information sufficient to locate such records, and (3) records in the possession of other Federal agencies if such records are relevant to the veteran's claim.

Senate Bill

Subsection (d) of the proposed 5103A would specify the assistance to be provided by the Secretary to a claimant applying for disability compensation. The Secretary would be obligated to obtain (1) relevant service and medical records maintained by applicable governmental entities that pertain to the veteran for the period or periods of the veteran's service in the active military, naval, or air service, (2) existing records of relevant medical treatment or examinations provided at Department health care facilities or at the expense of the Department but only if the claimant has furnished information sufficient to locate such records, (3) relevant records from adequately identified governmental entities authorized by the claimant to be released, and (4) relevant records from adequately identified private person or entities authorized by the claimant to be released. Efforts to obtain governmental records would be required to continue until it is reasonably certain, as determined in accordance with the regulations prescribed under subsection (f) that such records do not exist.

Compromise Agreement

Recognizing that VA has a higher burden in securing records maintained by VA and other governmental agencies, section 3 of the compromise agreement requires the Secretary to obtain the claimant's service medical records and other relevant records pertaining to the claimant's active military, naval, or air service that are maintained by a governmental entity if the claimant provides sufficient information to locate them. By use of the term ``governmental entity,'' it is the Committees' intention that VA also secure relevant records maintained by state national guard and reserve units, as they may provide important information relating to the veteran's service history.

MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS

House Bill

In the case of a claim for disability compensation, subsection (d) of proposed section 5103 would require the Secretary to provide a medical examination or obtain a medical opinion when the Secretary has established that (1) the claimant has (a) a current disability, (b) current symptoms of a disease that may not be characterized by symptoms for extended periods of time, or © persistent or recurrent symptoms of disability following discharge from service, and (2) there was an in-service event, injury, or disease (or combination of events, injuries, or diseases) during the claimant's active military, naval, or air service which could have caused or aggravated the current disability or symptoms, but (3) the evidence ``on hand'' is insufficient to establish service connection.

SENATE BILL

Proposed section 5103A(d) would require VA to provide a medical examination needed for the purpose of determining the existence of a current disability if the claimant submits verifiable evidence, as determined in accordance with the regulations prescribed under subsection (f), establishing that the claimant is unable to afford medical treatment. Proposed subsection (e) provides that, while obtaining or after obtaining information or lay or medical evidence under subsection (d) of proposed 5103A, the Secretary determines that a medical examination or a medical opinion is necessary to substantiate entitlement to a benefit, the Secretary would then provide such medical examination or obtain such medical opinion.

Compromise Agreement

Under section 3 of the compromise agreement, proposed section 5103A(d) provides that in the case of a claim for disability compensation, the Secretary shall provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Taking into consideration all information and lay or medical evidence (including statements of the claimant), an examination would be necessary if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability and, (b) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service but, © does not contain sufficient medical evidence for the Secretary to make a decision on the claim. It is the Committees' intent that the term ``disability'' cover both injuries and diseases, including symptoms of undiagnosed illnesses.

In the revised section 5103A, the Committees have agreed to use the phrase ``if the evidence of record ..... taking into consideration all information and lay or medical evidence (including statements of the claimant) ..... contains competent evidence ..... that the claimant has a current disability, or persistent or recurrent symptoms of disability'' [emphasis added] as the threshold for when VA must obtain a medical examination or opinion for compensation claimants. This wording is used to describe evidence that is ``fit for the purpose for which it is offered.'' U.S. v. DeLucia, 256 F.2d 487, 491 (7th Cir. 1958). Competent evidence would be evidence that is offered by someone capable of attesting to it; it need not be evidence that is credible or sufficient to establish the claim. A veteran (or layperson) can provide competent evidence that he or she has a pain in the knee since that evidence is fit for the purpose for which it is offered. However, VA would not be bound to accept a veteran's assertion that he has a torn ligament, for that would require more sophisticated information, such as the results of a medical examination or special medical testing. The Committees emphasize that medical examinations or medical opinions may be needed in order for the Secretary to fulfill the duty to assist in other situations not mandated by this section under the general duty to assist required in section 3.

REGULATIONS

House Bill

Proposed subsection 5103(e) would require the Secretary to prescribe regulations (1) specifying the evidence needed to establish a claimant's eligibility for a benefit and (2) defining the records that are relevant to a claim.

Senate Bill

Proposed subsection 5103A(f) of S. 1810 would require the Secretary to prescribe regulations for purposes of the administration of new section 5103A.

Compromise Agreement

Section 3 of the compromise agreement would require the Secretary to prescribe regulations in order to carry out this section. It is the Committees' intent that these regulations address the provisions of the language described above under ``House Bill.''

RULE WITH RESPECT TO DISALLOWED CLAIMS

House Bill

Proposed subsection (f) of section 5103 would specify that nothing in section 5103 would be construed to require the Secretary to reopen a claim that had been disallowed except when new and material evidence is presented or secured, as described in section 5108 of title 38, United States Code.

Senate Bill

S. 1810 does not contain a similar provision.

Compromise Agreement

Section 3 of the compromise agreement follows the House language.

OTHER ASSISTANCE NOT PRECLUDED

Under section 5107(b) of title 38, United States Code, the Secretary is required to give claimant the benefit of the doubt ...

[broncovet]

I agree with Cowgirl: Wings for President!!

[Hoppy]

Wings,

"The Claim for Panic Disorder was NOT a claim for PTSD, and should have been evaluated as a new claim, not as an attempt to re-open the original PTSD claim.

How am I doing lol! ~Wings"

That is exactly what I am saying. Good news, The SO now says the RO has changed their position and is viewing the Panic Disorder as a new claim. I have seen this change of position in several BVA claims I read. This solves an effective date for the claim issue. The problem is that they then determined that even in view of the VCAA they were not required to schedule a C&P because the condition was not determined to be chronic while in the military. This was also an error. The law does not require that you prove specific issues prior to a C&P exam. Additionally, the SMR was clear that the diagnosis given was for a condition considered at that time to be chronic. Unfortunately the raters could not connect the dots. The problem continues and they made a third error because we submitted a nexus letter from the primary care doctor and they routinely ignored the nexus letter from the primary care doctor because they did not think he was capable of supporting his determination. There are many laws they ignored by ignoring the primary care doctors nexus letter. The nexus letter should also have required a C&P exam to clarify issues that were not understood or considered superficial by the raters. The legal requirement requiring a C&P exam is that the evidence only suggests a nexus. The purpose of the C&P would be to determine if there actually was a nexus.

We recently obtained a medical report that should change everything. The report addresses all the misconceptions the raters have advanced because the raters were relying on obsolete diagnoses noted in the SMR. The diagnoses in the SMR have been re-evaluated and equated to DSM IV diagnoses.

Due to the three big errors made by the RO the veteran had to develop the medical evidence at his own expense.

Edited October 11, 2009 by Hoppy

[carlie]

Hoppy,

I know that you will re-assure this veteran that if the claim is granted,

he will certainly re-coup his investment - be sure to have him understand

it truly is an investment and knowing that may lighten his load a little.

He's lucky to have your help.

carlie